24-2844 Perez v. Banks et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 31st day of October, two thousand twenty-five.

PRESENT: AMALYA L. KEARSE, DENNIS JACOBS, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________ MARINA PEREZ, AS PARENT AND NATURAL GUARDIAN OF C.P. AND INDIVIDUALLY,

Plaintiff-Appellant, v. No. 24-2844-cv

DAVID C. BANKS, IN HIS OFFICIAL CAPACITY AS CHANCELLOR OF THE NEW YORK CITY DEPARTMENT OF EDUCATION, NEW YORK CITY DEPARTMENT OF EDUCATION,

Defendants-Appellees. _____________________________________ FOR PLAINTIFF-APPELLANT: RORY J. BELLANTONI, Brain Injury Rights Group, Ltd., New York, NY.

FOR DEFENDANTS-APPELLEES: CHLOÉ K. MOON, Assistant Corporation Counsel (Richard Dearing, Devin Slack, on the brief), for Muriel Goode-Trufant, Corporation Counsel of the City of New York, New York, NY.

Appeal from a September 27, 2024 judgment of the United States District Court for

the Southern District of New York (Andrew L. Carter, Jr., Judge)

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the order of the district court is AFFRIMED.

Plaintiff-Appellant Marina Perez (“Perez”) is the mother of C.P., a student who has

been diagnosed with several disabling conditions, including cerebral palsy and cortical

vision impairment. As a result of his disabilities, C.P. began receiving special education

services from the Defendant-Appellee New York City Department of Education (“DOE”)

under the Individuals with Disabilities Education Act (“IDEA”),

et seq.

C.P. attended a specialized, non-public school from 2007 until the 2018-2019 school year,

when Perez unilaterally placed C.P. at the International Institute for the Brain (“iBrain”),

a private school. [A100] C.P. turned nineteen years old during the 2021-2022 school year.

In March 2021, the DOE developed an individualized education program (“IEP”) for C.P.

for the 2021-2022 school year (“2021 IEP”), as required by the IDEA. The 2021 IEP

2 incorporated C.P.’s cortical vision impairment diagnosis into the goals/management

needs sections of the report but declined to recommend vision education services for C.P.

Perez then filed two separate administrative complaints against DOE, which were

later consolidated for the purposes of the impartial hearing. The first complaint, filed on

June 29, 2021, sought, inter alia, an award of compensatory education services in the form

of eleven years of tuition and related services at iBrain, and extended eligibility for special

education services, alleging that the DOE violated the IDEA by failing to provide C.P. a

free appropriate public education (“FAPE”) for most of C.P.’s educational career,

spanning from the 2007-2008 to 2018-2019 school years. The second complaint, filed on

July 6, 2021, sought tuition reimbursement for the 2021-2022 extended school year and

other relief under the IDEA, alleging, inter alia, that the 2021 IEP’s failure to recommend

vision education services denied C.P. a FAPE for the 2021-2022 school year.

Following eight days of hearings in which both parties presented evidence and

called witnesses, the Impartial Hearing Officer (“IHO”) found that the claims alleged in

the first complaint were time-barred by the IDEA’s two-year statute of limitations. App’x

33. After considering the second complaint, the IHO determined that the DOE’s failure

to recommend vision services for the 2021-2022 school year as a part of C.P.’s 2021 IEP

denied C.P. a FAPE for that academic year (“2021 FAPE denial”). However, the IHO did

not make a finding that the 2021 FAPE denial involved a gross violation of the IDEA. See

App’x 34-35. Based on these conclusions, the IHO awarded C.P., inter alia, tuition

3 reimbursement for the 2021-2022 extended school year along with extended eligibility for

C.P. to remain at iBrain at public expense through the age of twenty-five (the

“compensatory education award”). App’x 36-37. The DOE then appealed the IHO’s

decision to the State Review Officer (“SRO”), challenging the IHO’s compensatory

education award.

Upon review, the SRO reversed the portion of the IHO decision that awarded four

years of extended eligibility because the 2021 FAPE denial did not involve a gross

violation of the IDEA. App’x 63 (explaining that “while an IHO has broad discretion to

fashion appropriate equitable relief in IDEA matters, the IHO’s award of four years of

extended eligibility for special education services to [C.P.] which also contemplated that

[C.P.] would attend iBrain during the extended eligibility period, far exceeded an

appropriate remedy for the district’s denial of FAPE to [C.P.] for the 2021-22 school

year”). The SRO otherwise affirmed all other aspects of the IHO’s opinion, including the

IHO’s factual determinations and tuition reimbursement award for the 2021-2022 school

year.

Perez then brought this suit in the district court, seeking review of the SRO’s

decision. Following cross-motions for summary judgment, the district court upheld the

SRO’s determinations and granted summary judgment to Defendants-Appellees. Perez

now appeals the district court’s order granting summary judgment. We assume the

4 parties’ familiarity with the remaining facts, procedural history, and issues on appeal, to

which we refer only as necessary to explain our decision.

When reviewing state administrative proceedings under the IDEA, “we engage in

an independent, but circumscribed, review, more critical than clear-error review but well

short of complete de novo review.” T.K. v. N.Y.C. Dep’t of Educ.,

(2d Cir.

2016) (internal quotations omitted and alterations adopted). We “must defer to the SRO’s

decision on matters requiring educational expertise,” unless we determine that the SRO’s

decision was “inadequately reasoned, in which case a better-reasoned IHO opinion may

be considered instead.” R.E. v. N.Y.C. Dep’t of Educ.,

(2d Cir. 2012). “We

review for abuse of discretion the fashioning of relief under

(i)(2)(C)(iii).”

Doe v. E. Lyme Bd. of Educ.,

(2d Cir. 2015).

The IDEA requires school districts “to provide all children with disabilities a free

appropriate public education,” which consists of “special education and related services

tailored to meet the unique needs of a particular child, and [must] be reasonably

calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Cent.

Sch. Dist.,

(2d Cir. 2007) (internal quotation marks omitted). If the court

determines that the school district denied the child a FAPE in violation of the IDEA, then

compensatory services may be awarded only when there is a gross violation of the

IDEA. See Somoza v. N.Y.C. Dep’t of Educ.,

, 109 n.2 (2d Cir. 2008); T.M. ex rel.

A.M. v. Cornwall Cent. Sch. Dist.,

(2d Cir. 2014) (explaining that "[t]he

5 IDEA provides district courts with broad discretion to grant such relief as the court

determines is appropriate in order to carry out its statutory mandate” (internal quotation

marks omitted)). Generally, the compensatory education award “‘must be reasonably

calculated to provide the educational benefits that likely would have accrued from special

education services the school district should have supplied in the first place.’” Doe,

(2d Cir. 2015) (quoting Reid ex rel. Reid v. District of Columbia,

(D.C. Cir. 2005)).

The factual record in this case is not in dispute. However, the parties dispute

whether the IHO’s award of extended eligibility for special education services at iBrain

was an appropriate remedy for the DOE’s 2021 FAPE denial. Upon review of the record,

we are unpersuaded that Perez met her burden of demonstrating that the district court

improperly upheld the SRO’s reversal of the IHO’s compensatory education award in the

form of extended eligibility through the age of twenty-five. See M.H. v. N.Y.C. Dep’t of

Educ.,

, 225 n.3 (2d Cir. 2012).

A gross violation finding is a prerequisite to any compensatory education award.

Perez’s challenge to the DOE’s 2021 denial of vision education services for a single school

year is the only claim that survives the IDEA’s two-year statute of limitations. Therefore,

we agree with the SRO that C.P. was not entitled to compensatory relief because the 2021

FAPE denial was not a gross violation of the IDEA. The district court was entitled to

afford considerable deference to the fact that neither the IHO nor the SRO explicitly

6 concluded that a gross violation occurred in this case. In addition, Perez has not

identified other admissible evidence that the district court should have weighed before

finding that the 2021 FAPE denial did not amount to a gross violation of the IDEA. Timely

filed claims for the 2007 to 2018-19 school years may have supported a gross violation

finding that might have warranted compensatory relief. However, based solely on the

2021 FAPE denial, we conclude that the district court neither improperly deferred to the

SRO’s determinations nor abused its discretion in concluding that C.P. is not entitled to

extended eligibility through the age of twenty-five as a form of compensatory relief under

the circumstances of this case. We have considered Perez’s remaining arguments and

conclude they are without merit.

* * *

For the foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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